Bramham v. Los Angeles Unified School District CA2/4

Opinion

Filed 9/18/26 Bramham v. Los Angeles Unified School District CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR GRISELDA BRAMHAM, B344397 Plaintiff and Appellant, (Los Angeles County v. Super. Ct. No. 20STCV49464) LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kevin C. Brazile, Judge. Reversed in part and remanded with directions. Tully Rinckey and Ryan C. Nerney for Plaintiff and Appellant. Artiano Shioff and Paul V. Carelli, IV for Defendant and Respondent. Plaintiff Griselda Bramham, a former teacher at Los Angeles Unified School District (LAUSD) and an officer in the Army Reserves, sued LAUSD for various violations of the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. § 4301, et seq.; USERRA) and the California Military and Veterans Code. By the time of trial, three claims remained: failure to reemploy Bramham in 2012 in violation of 38 U.S.C. §§ 4312 and 4313 (count 1); failure to reemploy Bramham in 2019 in violation of 38 U.S.C. § 4312 (count 5); and discrimination in violation of 38 U.S.C. § 4311(a) (count 7).1 The trial court granted LAUSD’s motion for nonsuit on counts 1 and 7. On count 5, the jury returned a special verdict finding LAUSD terminated Bramham’s employment as a substitute teacher with LAUSD in 2019, but not “because [she] was in the Military.” The court then entered judgment in favor of LAUSD. On appeal, Bramham argues the trial court erred by (1) incorrectly instructing the jury regarding the elements of a claim under 38 U.S.C. § 4312 (section 4312); (2) submitting a special verdict form to the jury with improper law; and (3) granting nonsuit on counts 1 and 7. We reject Bramham’s arguments with respect to counts 1 and 7. Bramham has not met her burden of showing the trial court erred in granting LAUSD’s nonsuit motion on those counts.

1 Because Bramham used the term “count” rather than “cause of action” in her complaint, and the trial court adopted the same convention, we also refer to the claims as “counts” for consistency purposes.

2 We agree with Bramham, however, that the special verdict form was fatally defective because it did not require the jury to make factual findings on the elements of plaintiff’s section 4312 claim.2 The jury’s finding that LAUSD terminated Bramham for a reason other than that she was in the military did not resolve the issue of whether LAUSD violated section 4312. Thus, the trial court’s judgment based on the special verdict was in error. Accordingly, we affirm the judgment as to counts 1 and 7, reverse the judgment as to count 5, and remand the matter to the trial court for retrial on count 5.

BACKGROUND Bramham is an officer in the Army Reserves. She began working for LAUSD in 1997 as an office assistant in an elementary school. After three years, she was promoted to an administrative assistant. She continued in that position until she was deployed to Iraq in 2003. In 2005, Bramham returned to work as an administrative assistant, until she became a teacher in 2007. For the 2007 to 2008 and 2009 to 2010 school years, Bramham worked as a probationary teacher at an LAUSD middle school. During the 2009 to 2010 school year, however, LAUSD laid off thousands of teachers due to severe budget cuts. Specifically, in February 2009, the LAUSD Board proposed laying off 2,392 non-permanent certificated personnel. The Board also 2 Under section 4312, a returning servicemember is entitled to reemployment if: (1) he or she notifies the employer of his or her deployment; (2) his or her cumulative length of absence does not exceed five years (subject to exceptions); and (3) the person reapplied for the position.

3 proposed laying off additional certificated personnel in March 2010. On March 12, 2009, LAUSD sent a layoff notice to Bramham, stating the layoff would be effective on the last day of the school year, June 30, 2009. Because she was laid off, Bramham did not become a permanent teacher as she did not start her third year as a certificated employee. The layoff notice offered Bramham a position as a substitute teacher, which she accepted, and notified her that she would be placed on a District Reemployment/Reassignment list for a full-time position for a period of 39 months “from the last date of paid contract service with the District.” The notice explained that the order of reassignment from the list “shall be based on seniority within status.” Bramham continued serving in the military after she was laid off from LAUSD: she was on active duty attending officer school from August 2, 2009 through December 3, 2009; she trained in early 2010; and she served on active duty from June 15, 2010 through September 30, 2012. On September 20, 2012, Bramham sent a letter to LAUSD stating that she was honorably released from active duty on June 30, 2012, and requesting that she be reinstated in her “former position.” Bramham testified at trial that by “former position” she meant a full-time teaching position. She remained on the 39- month rehire list as of the date of the letter—the rehire window was set to expire 10 days later on September 30, 2012. On September 30, 2012, LAUSD sent a letter to Bramham stating that the 39-month rehire list had expired, and that Bramham was not “reappointed because we did not reach your seniority date to be rehired.” At that point, Bramham could 4 reapply for a full-time teaching position, just like other laid-off teachers in her cohort. She applied for positions and received interviews, but was ultimately not hired. Bramham then had multiple deployments over the next six years. She also had medical issues making her unavailable for substitute-teaching work in 2017 and 2019. In the beginning of 2019, Bramham was still employed by LAUSD as a substitute teacher, as she had been since 2009. In February 2019, she signed a “Statement of Day-to-Day Substitute Availability” to work two days per week. Between March 5 and May 23, 2019, however, LAUSD’s call records show that LAUSD could not reach Bramham by phone. Then, Bramham accepted work on May 24 and May 30, 2019, but from May 31 through November 13, 2019, LAUSD again could not reach Bramham by phone. On November 13, 2019, LAUSD sent Bramham a letter notifying her that, effective November 18, 2019, she would be “separated from service as a day-to-day K-12 Certificated Substitute Teacher.” The letter explained that LAUSD’s records indicated she had “not accepted a substitute assignment in the past five months or more.” The letter further stated that if Bramham believed she was receiving the letter in error, she should contact the Substitute office immediately. When Bramham received the letter, she was still on active duty. Bramham contacted Jorge Amador, the Assistant Director of the Certificated Substitute Unit, by phone and then met with him in person to voice her concerns. She told Amador that she was still on active duty and that she had not received any substitute teaching assignments. Amador replied that he was still going “forward with her termination.”

5 In early December 2019, Bramham contacted Amador’s supervisor, Leanne Hannah. Bramham and Hannah had two conversations on the phone. During the first conversation, Bramham explained she had been deployed and that her phone number was incorrect in LAUSD’s system. Hannah replied that she would look into the issue. Hannah followed up with Bramham by phone and told Bramham she was “still going forward with the termination” and if Bramham felt there were any violations of her employment rights, she could contact her union. Hannah told Bramham she could reapply for a substitute position and offered to assist Bramham with the reapplication process. Hannah also followed up on her phone conversations with Bramham with an email on December 16, 2019. Hannah explained: “Based on my research with both the Substitute Unit and the Smart Find Express programmers, there was no indication of a system error causing the change of your phone number. On one occasion, you made a request via an ITD service ticket on April 25, 2019 to have your phone number changed and your phone number was updated. You indicated that one of the phone numbers in the system was for your former school site (Broadacres Elementary), however, I was not able to confirm any of your phone numbers matched that of Broadacres Elementary.” The email also provided Bramham with a link to reapply for a substitute teacher position. On December 29, 2020, Bramham filed this lawsuit against LAUSD asserting eight claims under the USERRA and the California Military and Veterans Code. The trial court granted LAUSD’s motion for judgment on the pleadings on counts 2, 4, 6, and 8, and LAUSD’s motion for summary adjudication of count 3.

6 The case, therefore, proceeded to trial on count 1 (failure to reemploy Bramham in 2012 in violation of 38 U.S.C. §§ 4312 and 4313); count 5 (failure to reemploy Bramham in 2019 in violation of 38 U.S.C. § 4312); and count 7 (discrimination in violation of 38 U.S.C. § 4311(a)). At the close of evidence, LAUSD moved for nonsuit on all three claims. The trial court granted partial nonsuit as to counts 1 and 7. The remaining count 5 went to the jury. The jury returned a special verdict finding LAUSD terminated Bramham’s employment as a substitute teacher, but the termination was not because she was in the military. The trial court entered judgment in favor of LAUSD, and Bramham timely appealed.

DISCUSSION

I. Special Verdict Form The sole claim that went to the jury was count 5 for failure to reemploy Bramham in 2019 in violation of section 4312. Section 4312 provides, in relevant part, that a person whose absence from employment is necessitated by reason of service in the military “shall be entitled” to reemployment if: (1) the person notifies the employer of his or her deployment; (2) his or her cumulative length of absence does not exceed five years (subject to exceptions); and (3) the person reapplied for the position. The special verdict form here asked the jury: “In November 2019, did LAUSD terminate Plaintiff’s employment as a substitute teacher for the School District?” The jury answered “Yes.” Because the jury answered in the affirmative, it was then instructed to answer the second question: “Was the reason that LAUSD terminated Plaintiff’s employment because Plaintiff was in the Military (Army)?” The jury answered “No” and was, therefore, instructed to stop there and sign and return the form.

7 Bramham contends the special verdict form incorrectly implied that plaintiff needed to show discriminatory animus on the part of LAUSD despite the clear language of the statute mandating reemployment if the employee meets the three criteria listed in the statute. LAUSD agrees that if Bramham satisfies the conditions for reemployment under section 4312, “then she must be reemployed.” But LAUSD asserts that “[t]he only issue is whether the jury verdict Question Number 2 captures that issue, and the answer is that it does.” We are unpersuaded. “A special verdict’s correctness is analyzed as a matter of law and therefore subject to de novo review.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1187.) Unlike a general verdict (which implies finding on all issues in favor of the plaintiff or defendant), “a special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) Here, the special verdict form asked if the reason LAUSD terminated Bramham was because she was in the miliary. But whether LAUSD terminated Bramham because she was in the military does not answer the different question of whether LAUSD violated section 4312. That section provides a right to reemployment to members of the armed services as long as three criteria are met; showing discriminatory animus is not a criterion. Contrary to LAUSD’s assertion, Question No. 2 of the special verdict form did not “capture” the elements of a section 8 4312 claim. Thus, the special verdict was fatally deficient in that the jury was neither requested to, nor did it, make the necessary findings for a violation of section 4312. Instead, the jury answered a different question regarding discriminatory animus. LAUSD argues any error would be harmless because Bramham cannot prove two elements of section 4312—that she satisfied the five-year rule and that she reapplied as a substitute teacher. We are unconvinced. With respect to the five-year rule, LAUSD merely argues that “on the face of the evidence, Bramham served more than five cumulative years” and she did not provide any “expert testimony” to assist the jury in determining whether any of the exceptions to the five-year rule would apply. This is insufficient to show that none of the exceptions apply as a matter of law. As to the issue of whether Bramham reapplied for a substitute teaching position, LAUSD cites Bramham’s testimony that she “went to [the] link to reapply” and “it’s the same application process” for both full time and substitute teaching. LAUSD claims this testimony proves Bramham only reapplied for a full-time position and not the substitute teacher position. The cited testimony, however, was ambiguous and does not conclusively prove Bramham never reapplied for a substitute teaching position. This was a jury question. We cannot conclude the erroneous special verdict form was harmless because the jury did not make any of the necessary findings for a violation of section 4312, and we will not speculate what the jury would have decided. Indeed, not only did the jury not make the necessary findings for a violation of section 4312, but the verdict form effectively required Bramham to prove an element she did not need to prove. Thus, on these facts, we 9 cannot “conclude that the judgment is ‘clearly right’.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246.) II. Jury Instruction on Section 4312 Bramham contends the trial court erred by incorrectly instructing the jury regarding the elements of a claim under section 4312.3 As discussed above, under section 4312, employees are entitled to reemployment if they meet the three criteria listed in that section. The second criterion is that the cumulative length of their absence due to military service must not exceed five years, absent certain exceptions. (38 U.S.C. § 4312(a)(2).) Those exceptions, which are complicated and include several subparts, are detailed in section 4312, subdivision (c). Bramham asserts the trial erred by failing to include the enumerated exceptions to the five-year rule. Bramham acknowledges her cumulative absences exceeded five years, but argues three exceptions apply: (1) section 4312(c)(3), which provides the five-year calculation shall not include any service “to fulfill additional training requirements determined and certified in writing by the Secretary concerned, to be necessary for professional development, or for completion of skill training or retraining”; (2) section 4312(c)(4)(C), which excludes time from the five-year calculation in which the servicemember was “ordered to active duty (other than for training) in support, as determined by the Secretary concerned, of an operational mission 3 Bramham’s counsel claims the trial court “deliberately and intentionally misstated the law on the jury special instructions.” Such a serious accusation regarding the integrity of the trial court, unsupported by any evidence in the record, is a violation of counsel’s ethical duties. (See A Company Hungary KFT v. Bespalov (2026) 122 Cal.App.5th 341.) We caution counsel to refrain from this unethical conduct in the future.

10 for which personnel have been ordered to active duty under section 12304 of title 10;” and (3) section 4312(c)(3)(B), which excludes time from the five-year calculation in which the servicemember was “ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by the Secretary concerned.” Although there may be some merit to Bramham’s contention of instructional error, we cannot reverse the judgment on this basis. As the appellant, Bramham has the burden on appeal to show error. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) To meet her burden, she must support her points with reasoned argument, authority, and record citations, or they may be deemed forfeited. (Coziahr v. Otay Water Dist. (2024) 103 Cal.App.5th 785, 799.) Here, Bramham forfeited her argument regarding instructional error because she does not cite the full instruction given at trial. Nor does she provide us with a record citation to her proposed instruction, or state the proposed instruction in her appellate brief. Rather, Bramham merely argues the court erred by omitting “these” exceptions from the special instruction, and it is unclear whether she is referring to all the exceptions or the three identified in her appellate brief. Braham’s citation to the Federal Rules of Civil Procedure is unhelpful because they do not apply to these state court proceedings. (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1047; see also Erie R.R. v. Tompkins (1938) 304 U.S. 64.) Assuming we excuse Bramham’s forfeiture, on this record, Bramham has not met her burden on appeal to show error. However, because we are remanding the matter for a new trial on 11 count 5, we instruct the court, on remand, to permit the parties to resubmit proposed jury instructions regarding the elements of section 4312 and the applicable exceptions. The trial court shall reconsider the appropriate instruction based on the parties’ submissions and oral argument. III. Nonsuit on Counts 1 and 7 Bramham lastly contends the trial court erred by granting LAUSD’s motion for nonsuit on count 1 (failure to reemploy Brahman in 2012 in violation of 38 U.S.C. §§ 4312 and 4313) and count 7 (discrimination in violation of 38 U.S.C. § 4311(a)). We conclude the trial court correctly determined that the evidence presented by Bramham was insufficient, as a matter of law, to permit the jury to find in her favor on either count. A. Standard of Review “ ‘A nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs’ evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs’ favor, it can be said that there is no evidence to support a jury verdict in their favor. [Citations.]’ ” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 669 (Hernandez).) “Nonsuit is appropriate where the plaintiff's proof raises nothing more than speculation, suspicion or conjecture.” (Ibid.) “A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).) In reviewing a grant of nonsuit, we are “ ‘guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.’ ” (Nally, supra, 47 Cal.3d at p. 291.)

12 The judgment of nonsuit will be affirmed if a judgment for the defendant is required as a matter of law, after resolving all presumptions, inferences and doubts in favor of the plaintiff. (Hernandez, supra, 215 Cal.App.4th at p. 669.) B. Count 1 (failure to reemploy Bramham in 2012) Under the USERRA, “[a]s a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. This position is known as the escalator position. The principle behind the escalator position is that, if not for the period of uniformed service, the employee could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. The escalator principle requires that the employee be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service.” (20 C.F.R. § 1002.191.) “If the employee is on layoff and begins service in the uniformed services, or is laid off while performing service, he or she may be entitled to reemployment on return if the employer would have recalled the employee to employment during the period of service.” (20 C.F.R. § 1002.42(a).) However, “[i]f the employee is laid off before or during service in the uniformed services, and the employer would not have recalled him or her during that period of service, the employee is not entitled to reemployment following the period of service simply because he or she is a covered employee. Reemployment rights under USERRA cannot put the employee in a better position than if he or she had remained in the civilian employment position.” (Id., § 1002.42(c).)

13 Here, Bramham was laid off in 2009 and placed on the 39- month rehire list. The most senior teachers on the list were rehired first. Leanne Hannah, the Director of Human Resources, testified that Bramham’s seniority date as a teacher was September 4, 2007. Bramham was never rehired off the list because LAUSD did not reach her seniority date (i.e., other teachers with more seniority were still on the list). Thus, the evidence demonstrates that whether Bramham was deployed or not, she would have remained on the 39-month rehire list in 2012, and her name would not have been selected by the time the 39 months had expired because her seniority date was not reached. In other words, Bramham was only entitled to reinstatement in a substitute teaching position upon her return from duty in September 2012, while remaining on the rehire list until September 30, 2012. She was, therefore, treated the same as other laid-off teachers whose seniority date was not reached to be rehired. (20 C.F.R. § 1002.42(a) & (c).) Bramham contends she “was able to provide sufficient evidence that she would have been rehired as a full-time teacher with reasonable certainty from that 39-month list.” In support of her assertion, Bramham claims that she “called into question the rehiring of a comparator, Cecile Cho, who [LAUSD] argued was only rehired from the 39-month list because of a bilingual credential in Korean.” Specifically, Bramham claims that the 2010/2011 rehire list did not reflect Ms. Cho had this Korean authorization, “thereby calling into question the legitimacy of these claims that [Bramham] was not leapfrogged over by other individuals for a full-time teaching position in 2012.” But Bramham does not cite any evidence in the record for this assertion. Rather, she cites to a page of her memorandum of 14 points and authorities in opposition to LAUSD’s motion for nonsuit. Arguments in briefs are not evidence. (See, e.g. In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 591 [“A trial brief is not evidence, it is argument”].) Bramham has, therefore, not carried her burden on appeal to show the trial court erred by granting nonsuit on count 1. C. Count 7 (discrimination based on military service) The USERRA prohibits discrimination against persons because of their service in the uniformed services. Under 38 U.S.C., section 4311(a), a servicemember shall not be denied “reemployment, retention in employment, promotion, or any benefit of employment” on the basis of their military membership. An employer shall be considered to have engaged in the actions prohibited “under subsection (a), if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.” (38 U.S.C., § 4311(c)(1).) Bramham argues the evidence at trial established the reason for her termination as a substitute teacher in November 2019 was because she was in the military. She fails to cite evidence in the record, however, supporting this assertion. According to LAUSD, Bramham’s termination was because she had not accepted a service call as a substitute between May 30, 2019, and November 18, 2019. Bramham contends this assertion “leaves out crucial information” because LAUSD had the wrong 15 phone number in the automated call system, which was eventually corrected by Amador but then reverted back to the incorrect phone number shortly after June 2019. She claims that “[a] simple review of the phone records show the incorrect phone number from June 1, 2019 until November 2019 was the same incorrect phone number that Jorge Amador already knew about and corrected in April 25, 2019.” But in support of this assertion, Bramham cites a page of her declaration submitted in support of her opposition to LAUSD’s summary judgment motion, which states nothing about LAUSD’s phone records. Moreover, even if Bramham could prove that LAUSD had the wrong phone number for a period of time, that fact alone does not show Bramham’s membership in the military was a motivating factor for the termination. At most, it shows LAUSD terminated Bramham based on its mistaken belief that she was intentionally not returning LAUSD’s phone calls. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358 [employers may legally terminate employees for nondiscriminatory reasons that are unwise or incorrect].) We therefore conclude the trial court correctly granted nonsuit after finding LAUSD had a legitimate non-discriminatory reason for Bramham’s termination.4 DISPOSITION The judgment is reversed in part. The matter is remanded for retrial of count 5. On remand, the parties may submit, and the court shall consider, the parties’ proposed special jury 4 We also note that, even if the court erred by granting nonsuit, the error would have been harmless in light of the jury’s special verdict finding that the reason LAUSD terminated Bramham was not because she was in the military.

16 instructions on section 4312. The trial court’s grant of LAUSD’s motion for nonsuit on counts 1 and 7 is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS TAMZARIAN, J.

We concur:

ZUKIN, P. J.

DAUM, J.